https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1360

Republic v Directorate of Occupational Safety and Health Services & another; Wairimu (Ex parte Applicant) (Employment and Labour Relations Judicial Review E088 of 2025) [2026] KEELRC 1360 (KLR) (19 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1360 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Judicial Review E088 of 2025 HS Wasilwa, J May 19, 2026 Between Republic Applicant and The Directorate of Occupational Safety and Health Services Respondent and Lathyflora [K] Limited Interested Party and Hanna Wangari Wairimu Ex parte Applicant Ruling 1.The Ex-parte Applicant filed Chamber Summons dated 17th December 2025 seeking orders : -1.Spent2.That the Honorable Court be pleased to grant leave to the Ex- Parte Applicant to apply for Judicial Review Orders of Mandamus for purposes of compelling and to compel the Respondent herein, to rectify the DOSH FORM 4 issued by the DOSH Kiambu on the 15th September, 2023 to include the sum of Kshs. 3,442,974/- being the reasonable medical expenses incurred and payable by the Applicant [at Mediheal Hospital Parklands] following the work-related injuries the Applicant sustained on 21st January, 2023.3.That the costs of this Application be provided for. Ex-parte Applicant’s Case 2.The Ex-parte Applicant avers that until the work-related injuries sustained on 21st January, 2023, she had been an employee of the Interested Party, which fact is not denied as captured in the DOSH Form 1 duly filled and lodged by the Interested Party. 3.The Applicant avers that the incident was reported to the Directorate of Occupational Safety and Health Services, Kiambu vide DOSH Form 1 and upon assessment, she was found to have suffered 50% incapacity. Consequently, she was issued DOSH/WIBA/ 4 dated 15th September, 2023 requiring the Respondent to compensate her in the sum of Kshs. 592,014 which amount was duly paid. 4.She states that following the injuries, she was admitted at M/s Mediheal Hospital, Parklands Nairobi where she incurred medical expenses amounting to Kshs. 3,442,974 which sums, though payable by the Respondent under the law, were never captured in the DOSH Form 4 and consequently remained unpaid. 5.The Applicant asserts that owing to the outstanding medical expenses, she was constrained to commit a third party’s title document known as TIGONI/TIGONI BLOCK 1/2397 to M/s Mediheal Hospital as security pending settlement of the hospital bills, the security being valid until the end of May, 2025, which period has since lapsed. 6.She contends that despite lapse of the grace period granted by the hospital, the outstanding bills remain unsettled and the hospital has threatened to dispose of the said title document in recovery of the outstanding medical bills, prompting her to move the Court vide Nairobi ELRC Misc. Application No. E279 of 2025, Hannah Wangari Wairimu –vs– Lathyflora (K) Limited. 7.The Applicant avers that upon hearing the Motion, the Court in a Ruling delivered on 30th October, 2025 held that since the claim for medical expenses had not been captured in the DOSH Form 4, the Court lacked jurisdiction to entertain the suit and termed the same premature. 8.It is the Applicant’s case that following delivery of the said Ruling, she approached the Directorate seeking rectification of the DOSH Form 4 so as to include the medical expenses as advised by the Court but the same has not been successful, hence this application. 9.The Applicant states that there exists real danger that unless the medical expenses incurred at M/s Mediheal Hospital Parklands are settled, the hospital shall ultimately dispose of the third party’s title document thereby occasioning her irreparable loss. 10.She further asserts that unless this Court intervenes, she risks never recovering the said medical expenses at all and that she has no other efficacious remedy save for approaching this Court for the orders sought herein. 11.On the legal grounds in support of the application for mandamus, the Applicant contends that Sections 2, 17, 29 and 45 of the Work Injury Benefits Act were enacted to ensure settlement of medical expenses reasonably incurred by injured employees and that payment of such expenses ought not to be left to the whims or election of an employer. 12.The Applicant avers that Section 2 of WIBA defines medical aid to mean any or all benefits specified under Sections 45 and 47 of the Act; Section 17 provides that compensation includes the cost of medical aid already incurred and any amount paid or payable under Section 15 of the Act; while Section 29 provides that an injured employee may be awarded additional compensation where further medical aid necessitates further absence from employment. 13.She further relies on Section 47 of the Act which expressly provides that an employer shall defray any expenses reasonably incurred by an employee as a result of an accident arising out of and in the course of employment in respect of medical and hospital treatment. 14.The Applicant contends that by computing compensation under the DOSH Form 4 while excluding the medical expenses already incurred and payable, the Interested Party disenfranchised her and denied her the equal benefit of the law contrary to Article 27 of the Constitution. 15.She further states that Article 47 of the Constitution guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair and that omission of the medical expenses from the DOSH Form 4, despite the law expressly providing for the same, violates Articles 27 and 47 of the Constitution. 16.It is therefore the Applicant’s case that unless this Court intervenes, her constitutional rights shall continue being violated and that it is just, fair and in the interests of justice that the orders sought herein be granted pending hearing and determination of the application. Respondent’s Case 17.In opposition to the application, the Respondent filed a replying affidavit dated 16th January 2026, sworn by Grace Ngele Kitiro, the Assistant Director of Occupational Safety & Health. 18.The Respondent avers that it heads the County Occupational Safety and Health Office, Kiambu County, an office within the Directorate of Occupational Safety and Health Services under the Ministry of Labour and Social Protection charged with the responsibility of processing compensation for injuries sustained at work under the provisions of the Work Injury Benefits Act, 2007 at the county level. 19.The Respondent denies having failed and/or refused to consider any claim, concern, objection or dispute by the Ex-parte Applicant and reiterates the process of claim lodgment and compensation under the Work Injury Benefits Act. 20.The Respondent states that upon occurrence of an occupational accident or disease, the injured employee is first conveyed for treatment while the employer is required to notify the Directorate by filling Part I of DOSH Form 1 within seven days in non-fatal cases pursuant to Section 22 of WIBA, 2007 and within twenty-four hours in fatal cases pursuant to Section 21 of the Act. 21.Upon receipt of DOSH Form 1, the Directorate proceeds to investigate the accident pursuant to Section 23 of WIBA. In fatal accidents, compensation to dependents is computed and demand raised vide DOSH/WIBA 4 after identification of dependents in accordance with Section 36 and the Third Schedule to the Act. 22.The Respondent states that in non-fatal accidents, upon completion of treatment, the injured employee is assessed by the primary medical practitioner and an award on incapacity issued in Part II of DOSH Form 1 pursuant to Sections 28 and 30 of WIBA. The report together with supporting documents including payslips, medical reports, police abstract where applicable, identification documents and other relevant records are then submitted for processing of compensation. 23.It avers that upon computation of compensation, the Directorate raises a demand vide DOSH/WIBA 4 requiring the employer to settle the claim within ninety days pursuant to Section 26 of WIBA. 24.The Respondent avers that where a dispute arises regarding the assessment by the medical practitioner or the Director’s decision, the aggrieved party is required to lodge an objection before the Directorate and thereafter an appeal before the ELRC pursuant to Sections 51 and 52 of WIBA, 2007. 25.Upon receipt of an objection disputing incapacity assessment, the claimant is subjected to further assessment by a panel of doctors within the Directorate and where dissatisfied, the claimant may proceed to the ELRC on appeal. 26.The Respondent avers that on 17th February, 2023, he received notification of an occupational accident involving the Ex-parte Applicant from Lathyflora (K) Limited, the Interested Party, relating to an accident which occurred on 21st January, 2023 vide ML/DOSH Form 1. 27.It is the Respondent’s case that upon receipt of the notification, the Directorate conducted inquiries and was informed by the Interested Party that the Ex-parte Applicant was still undergoing treatment and therefore DOSH/WIBA 4 could not issue at that stage since the same is generated upon receipt of a fully completed medical report in Part I and II of DOSH Form 1. 28.The Respondent avers that on 10th September, 2023, the Directorate received DOSH Form 1 duly completed including Part II containing the medical report prepared by the treating doctor from Kiambu Level 5 Hospital in respect of the Ex-parte Applicant. 29.Thereafter the Directorate computed the compensation and raised a demand vide DOSH/WIBA 4 dated 15th September, 2023 in the sum of Kshs. 592,192 being the amount compensable to the Ex-parte Applicant and lodged the same with the Interested Party for settlement within ninety days. 30.The Respondent contends that the claim was computed strictly in accordance with Sections 28 and 30 of the Work Injury Benefits Act and due procedure in processing the claim was followed as required by law. 31.It further avers that on 6th June, 2024, the Interested Party settled the claim and the Directorate issued DOSH/WIBA 7 being a certificate of payment after the Ex-parte Applicant acknowledged receipt of the compensation by signing the certificate in respect of the sum of Kshs. 592,192. 32.The Respondent states that neither the Ex-parte Applicant nor the Interested Party submitted any claim for medical expenses at the time of assessment, processing and settlement of the claim as contemplated under Section 24(1) of the Work Injury Benefits Act and consequently the medical expenses could not be included in the claim. 33.It is the Respondent’s case that the claim for medical expenses was an afterthought since the statement relating to the alleged costs incurred at Mediheal Hospital was only submitted on 11th July, 2025 long after compensation had already been processed and settled. 34.The Respondent asserts that the authenticity of the statement from Mediheal Hospital could not be ascertained as it did not bear the hospital stamp. 35.It is further the Respondent’s case that neither the Ex-parte Applicant nor any other party lodged any objection against the Director’s decision in accordance with Section 51 of WIBA within the statutory timelines of sixty days or in the prescribed manner and that despite being aware of the procedure, the Ex-parte Applicant accepted the assessed compensation by signing DOSH/WIBA 7 dated 6th June, 2024. 36.The Respondent contends that having failed to raise an objection within the prescribed timelines or seek leave to file the same out of time, the Ex-parte Applicant cannot turn around and blame the Respondent for omissions attributable to her own failure to comply with the law. 37.The Respondent maintains that the Ex-parte Applicant has no right to raise objections outside the statutory framework and thereafter allege violation of rights while having failed to comply with the provisions of the law in the first instance. 38.The Respondent denies omitting the medical expenses from DOSH/WIBA 4 as alleged and reiterates that the Ex-parte Applicant did not submit medical receipts, costs or statements during assessment, processing and settlement of the claim. 39.The Respondent denies having acted contrary to the law or failed to consider any request by the Ex-parte Applicant and maintains that Sections 51 and 52 of the Work Injury Benefits Act provide an elaborate dispute resolution mechanism which the Ex-parte Applicant failed to invoke. Ex-parte Applicant’s Submissions 40.The Ex-parte Applicant submitted on three issues: whether the Respondent has a continuing statutory duty under Section 24 of the Work Injury Benefits Act to process claims for reasonable medical expenses, irrespective of when such claims are submitted; whether the Respondent's stated reasons for inaction constitute a lawful and reasonable discharge of its administrative duties under the Constitution and the Fair Administrative Action Act; and whether the Applicant is entitled to the Order of Mandamus sought. 41.On the first issue, the Ex-parte Applicant submitted that the Respondent’s contention that the medical expense statement could not be included because it was submitted after issuance of DOSH/WIBA 4 and payment of compensation was a misapprehension of the law. 42.She submitted that as at the time the accident was reported, paragraph 6 of the DOSH Form 1 indicated that the employee was still undergoing treatment and therefore the medical expenses to be incurred could not at that stage be ascertained. The Applicant argued that where medical expenses are not readily ascertainable or available at the time of issuance of DOSH/WIBA 4, the same may subsequently be claimed upon production of receipts. 43.It was submitted that liability on the employer to defray medical bills under Section 24 of WIBA is separate and distinct from compensation for incapacity under Sections 28 and 30 of the Act. The Applicant argued that the Act does not prescribe any limitation period for submission of claims relating to medical expenses and that the timelines stipulated under Sections 21 and 22 relate only to notification of accidents and not accounting for treatment expenses subsequently incurred. 44.The Ex-parte Applicant submitted that the duty imposed under Section 24 of WIBA is a continuing obligation which accrues as expenses are incurred and that it would be absurd and contrary to the protective purpose of the statute to hold that an employee undergoing prolonged treatment forfeits reimbursement merely because initial assessment for permanent disability had already been completed. 45.She submitted that the Respondent’s own affidavit at paragraph 4(h) listed medical reports, discharge summaries and sick sheets among the documents required for processing claims, the purpose of such documents being verification of treatment received and expenses incurred. Therefore, the Respondent could not claim that the process had rigidly closed upon issuance of DOSH/WIBA 4. 46.The Applicant thus submitted that the Respondent’s statutory duty to assess and include reasonable medical expenses was not extinguished upon issuance of DOSH/WIBA 4 dated 15th September, 2023 and that the Respondent remained under a legal obligation to process the claim presently before it. 47.On the second issue, the Ex-parte Applicant submitted that the Respondent’s challenge to the authenticity of the Mediheal Hospital statement was merely a cover and excuse for inaction and violated the principles of fair administrative action. Article 47(1) of the Constitution guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. 48.The Applicant submitted that the Respondent’s conduct was neither reasonable nor procedurally fair because upon receipt of the statement for medical expenses, a reasonable and efficient public body exercising a protective mandate ought to have taken proactive steps to verify authenticity of the documents or invoke its investigative powers under Section 23 of WIBA. 49.It was submitted that instead of undertaking investigations, the Respondent resorted to passive refusal thereby abdicating its statutory duty. 50.The Ex-parte Applicant submitted that the decision demonstrates that an order of mandamus will issue to compel a public body to perform its statutory duty where it has wrongly refused to act and that in the instant case the refusal was wrongful since it was based on a curable procedural defect which the Respondent had made no effort to cure. 51.Reliance was placed on Republic of Kenya v National Police Service Commission & 2 others; Nyabande (Ex parte) [2024] KEELRC 328 (KLR) wherein the court held: “Having found that the 1st Respondent did not adhere to Regulation 17 of the National Police Service Commission (Discipline) Regulations, 2015………Consequently, Judgment is hereby entered in favour of the Exparte Applicant in the following terms: An order of Mandamus be and is hereby issued to the 1st Respondent to immediately reinstate the Exparte Applicant herein back into the police service.” 52.The Applicant further relied on Article 159(2)(d) of the Constitution which obligates courts to administer justice without undue regard to procedural technicalities and submitted that the principle equally binds state organs including the Respondent. 53.She argued that denial of a substantive claim for medical compensation merely because assessment on incapacity had already been undertaken amounted to elevating procedural form over substantive justice. 54.On whether she is entitled to the orders sought, the Ex-parte Applicant submitted that the conditions for grant of an order of mandamus had been satisfied. 55.She submitted that she has a clear legal right to compensation for medical expenses under Section 24 of WIBA and that the Respondent owes a corresponding public duty to administer and enforce that provision. 56.It was submitted that the Respondent failed to perform that duty by refusing to process the claim for medical expenses. 57.The Applicant further submitted that she has no other adequate remedy available since the Respondent’s internal process had effectively been exhausted through refusal to act and that her right to compensation continued to be frustrated by administrative inaction, which is precisely the mischief judicial review remedies are intended to cure. 58.It is the Ex-parte Applicant’s submission that DOSH officers do not assess medical expenses but only process actual expenses incurred and supported by receipts from health facilities and that where such expenses are captured under DOSH/WIBA 4, it is solely on the basis of receipts and information supplied by the employer at the time of filing DOSH Form 1. She submitted that the relevant receipts and supporting documents had since been presented before the Court. 59.I have examined all the averments and submissions of the parties herein. What the applicant seeks is leave to apply for judicial review proceedings to compel the respondent to amend Dosh form 4 and include some expenses. 60.At this point, this court is not expected to ascertain the authenticity or otherwise of the claim but whether there is an arguable case. There must also be serious issues to be tried and not necessarily what is frivolous, vexatious and an abuse of the court process. 61.I have looked at the application herein. The applicant contends that there are costs incurred in her treatment which were not included in the Dosh form 4 and which she was is entitled to. The issues raised by the applicant are indeed arguable and not frivolous if provable before court. They are not mostly frivolous or an abuse of the court process. I therefore find that the application is merited and allow the applicant to file a JR application as prayed. The said JR application should be filed within 14 days. Costs in the application. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 19TH DAY OF MAY, 2026.HELLEN WASILWAJUDGE